Lichtenstein v. Lichtenstein Bldg. Corp., 378

• Decision Date: 29 May 1969
• Docket Number: No. 378,378
• Parties: A. Albert LICHTENSTEIN, Sr., Appellant, v. LICHTENSTEIN BUILDING CORPORATION, Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 765

442 S.W.2d 765

A. Albert LICHTENSTEIN, Sr., Appellant, v. LICHTENSTEIN BUILDING CORPORATION, Appellee.

No. 378.

Court of Civil Appeals of Texas Corpus Christi.

May 29, 1969.

Rehearing Denied June 30, 1969.

Branscomb, Gary, Thomasson & Hall, Richard A. Hall, Corpus Christi, for appellant.

Keys, Russell, Watson & Seaman, James C. Watson, Corpus Christi, Fulbright, Crooker, Freeman, Bates & Jaworski, L. Keith Simmer, Houston, for appellee.

OPINION

NYE, Justice.

This is a partition suit of real property and improvements of a department store located in downtown Corpus Christi. The suit was filed by appellee Lichtenstein Building Corporation against appellant A. Albert Lichtenstein, Sr., individually and as trustee. The issue of whether the property was susceptible to partition in kind was tried before the court and jury. The jury found that the property was not susceptible to a fair and equitable division in kind, whereupon the trial court ordered the property sold and appointed a receiver for such purposes. The proceeds of such sale were ordered to be returned into court and distributed among the parties in accordance with their respective interests.

The property in question concerned two lots facing Chaparral Street and two lots facing Mesquite Street. The south side of the property, one block long, bordered on Lawrence Street. Lichtenstein Building Corporation was the owner of the entire property in 1951 when it was leased to Lichtenstein, Inc. for a twenty-year term. This lease reserved rents to the lessor and restricted the use of the premises to department store purposes. Lichtenstein Building Corporation conveyed an undivided one-half interest in the property to appellant's corporation, Hotels, Inc. In 1954 appellee and Hotels, Inc. obtained a loan from Equitable Life Assurance Society of the United States secured by a deed of trust on the property and an assignment of certain rights of the owners under the lease. Thereafter, Hotels, Inc. changed its name to A A L Enterprises, Inc. and was later dissolved. With the consent of Equitable the assets of the corporation were transferred to appellant. A part of appellant's one-half interest is in trust naming appellant trustee.

Appellant filed a plea in abatement in answer to the suit for partition in which it was asserted that the property was not subject to partition at the time the suit was filed because of the existing lease, deed of trust and assignment of lease. Although the overruling of the plea in abatement is assigned as one point of error, it is neither briefed nor argued, and therefore not considered by us. Appellant makes no complaint of the jury findings on appeal. In a number of points of error, appellant asserts that the property is not subject to being partitioned either as a matter of law or because fact issues were raised that required a jury determination of an implied agreement not to partition; or that appellee was estopped to claim partitioning of the property by past agreements, until after the due date of the note to Equitable.

Appellant argues in his third point of error that appellee was not entitled to demand a partition because it had no present possessory interest in the property. It is contended by appellant that by judicial construction, one of the pre-requisites to the right to partition property is a possessory interest, relying upon Manchaca v . Martinez, 136 Tex. 138, 148 S.W.2d 391 (1941). In that case a wife had died leaving separate real property which had been occupied by her and her husband as their homestead. After the wife's death, her husband continued to occupy the property as his homestead. The grantees of some of the heirs of the deceased wife brought suit against the husband and some of the other heirs for a partition of the property. In their suit they sought partition, subject to the husband's rights of possession in the homestead. In affirming the lower court judgment that no partition was available, the Supreme Court said:

'* * * It is the well-established rule that, in the absence of a statute to the contrary, a party, in order to be entitled to compel partition, must not only own an interest in the land, but he must be entitled to possession of a portion thereof. * * *' (Citing authority)

Appellant argues that under the facts in this case the question here to be resolved was whether appellee established a possessory right in the property sufficient to entitle it to partition. The property, appellant says, was subject to a lease that gave no right to re-enter the premises for any purpose. Therefore, it is argued that the parties to this suit has no possessory rights whatsoever.

Generally a suit for partition is maintainable wherever property is owned by two or more persons jointly or in common. Article 6082, Vernon's Ann.Civ.St., permits joint owners of real estate '* * * whether held in fee or by lease or otherwise, (to) compel a partition thereof between the other joint owners * * *.'

As far as we can determine, the precise situation that is before us has escaped the attention of the Texas appellate courts. It has been recognized in Texas that the statute requires three necessary requisites to a forced partition. 'First, the partitioners must be joint owners; second, of the land, or any interest therein; and, third, the party seeking the partition must have an equal right to possession with the other joint owners.' Henderson v. Chesley, 273 S.W. 299 (Tex.Civ.App.--1925 wr. ref.); 116 Tex. 355, 292 S.W. 156 (1927).

A determination of what this 'right to possession' means, requires that we examine some Texas and other authority. Partitioning was allowed in Belgam Oil Co. v. Wirt Franklin Petroleum Corporation, 209 S.W.2d 376 (Tex.Civ.App.--Galveston 1948) where appellant and appellee were joint owners of the lease. The overriding royalty owners who had no right to possession, were not entitled to partition. The court said:

'The fact that in the instant case the trial court has ordered the property sold in order to perfect the partition does not impair the validity of the rule that a partition proceeding involves a segregation of the right of use and possession of the land, and is for the purpose of bringing an end to a joint right of use and possession. The owners of the overriding royalties do not have the right of possession or the right to share in the possession under the lease, and consequently, it is not necessary that their interests be partitioned. * * *'

To the same effect see Newcomb v. Blankenship, 256 S.W.2d 700 (Tex . Civ.App.--Texarkana 1953).

In Garza v. De Montalvo, 213 S.W.2d 762 (Tex.Civ.App.--San Antonio 1948), constructive possession was recognized. There ten owners of a tract of land executed a partition agreement setting aside to each joint owner his interest in a separate and fully described tract, that had been previously leased. The heirs contended that the volunteer partitioning did not partition the minerals. However, the court held that the royalty was real estate and went with the land. The partition agreement had the effect of partitioning not only the surface estate but also the mineral estate subject to the unitized mineral lease in existence on the entire tract.

Partition is a right much favored by the courts upon the ground that...